Standing Committee B

[Mr. Eric Illsley in the Chair]

Criminal Justice Bill

Clause 98 - Admissibility of hearsay evidence

Dominic Grieve: I beg to move amendment No. 403, in
clause 98, page 57, line 20, leave out 'admissible' and insert 'not to be admitted'.

Eric Illsley: With this it will be convenient to discuss the following amendments:
 No. 404, in 
clause 98, page 57, line 20, leave out 'if, but only if' and insert 'unless'.
 No. 522, in 
clause 98, page 57, line 21, leave out 
 'or any other statutory provision'.
 No. 405, in 
clause 98, page 57, line 22, at end insert 
 'and the court is satisfied that, despite the difficulties there may be in challenging the statement, it would not be contrary to the interests of justice for it to be admitted'.
 No. 406, in 
clause 98, page 57, line 22, at end insert 'or'.
 No. 407, in 
clause 98, page 57, line 24, leave out 'or'.
 No. 370, in 
clause 98, page 57, line 25, leave out paragraph (d).
 No. 373, in 
clause 98, page 57, line 43, leave out paragraph (h) and insert— 
 '(h) Any risk that its admission or exclusion will result in unfairness to any party to the proceedings (and in particular to how difficult it will be to challenge the statement if the relevant person does not give oral evidence)'.
 No. 374, in 
clause 98, page 58, line 1, leave out paragraph (i) and insert— 
 '(i) Any other relevant circumstances'.
 No. 409, in 
clause 98, page 58, line 2, at end insert 
 '; and the court shall not in any event admit a statement under that provision if of the opinion that, in consequence, any conviction of the defendant would be based wholly or substantially on statements not made in oral evidence in the proceedings'.

Dominic Grieve: We now move on to consider the proposed changes to hearsay evidence. It has been a central principle of our law, particularly the criminal law, that evidence presented in court should be given at first hand—that is, the person who is to give evidence should appear in court and relate what he saw. I know from my practice in health and safety that numerous exceptions have crept in. For example, business documents are frequently admitted in order
 to prove the truth of their contents, irrespective of the fact that the person who produced the document is not present. Indeed, as we go through the relevant clauses we shall see that the provision in effect takes the old rules on business documents and reproduces them in the Bill with only a few variations. There are numerous other exceptions, but listing them would not be particularly helpful and we shall come across most of them as we debate this chapter of the Bill.
 The principle has always struck me as being a sound one. Indeed, the various reports produced by the Law Commission and others over the years have reiterated time and again the basic rule that hearsay evidence in criminal proceedings should be admitted only in limited circumstances. The dangers of allowing the general admitting of hearsay evidence are obvious. The most obvious, in criminal proceedings, is that lawyers are unable to cross-examine and test the evidence: the person giving hearsay evidence can say that it is not his evidence but that of someone who happens not to be in court. 
 For me, the high point in the erosion of the hearsay rules came after the Omagh bombings, when I discovered to my horror that the Government were intending to pass emergency legislation that would enable conviction on hearsay evidence given by police officers about intelligence reports. It was hedged around with a few more provisions, but that was the nub of it. Although my party supported the legislation, it was fortunate that my father's funeral was being held on the following day and I was allowed to go home, as otherwise I would probably have rebelled. It is noteworthy that that legislation has never been used, for which we should be thankful. Indeed, some seriously questioned whether it was compliant with the provisions of the Human Rights Act on the right to a fair trial. 
 I have no objection to the codification of hearsay rules. They are widely spread across the chapters of ''Archbold'' and I am satisfied that they could do with some pulling together. When we embark on it, however, we ought to start from first principles. It is noteworthy that the first principle that the Government have chosen to use—and we have had this discussion before on chapter 1—is that hearsay, as a broad statement, is admissible. The Bill ought to say that hearsay is inadmissible except in exceptional circumstances, which we proceed to identify. 
 The purpose of amendment No. 403 is to change the wording of subsection (1). Instead of saying that hearsay can be admitted if certain tests are fulfilled, it should say that it cannot be admitted unless certain tests are fulfilled. I am the first to accept that the amendment is essentially symbolic. However, symbolism matters. The message that the Committee sends out about how we view hearsay evidence is important. 
 Amendment No. 404 is a linked amendment, and amendment No. 405 adds a test to the wording of subsection (1)(a). We should look at the criteria and protections for the admissibility of hearsay evidence in clause 98. Subsection (1) starts by saying that hearsay evidence may be admitted in certain circumstances. However, subsection (1)(d) lays out the condition that 
''the court is satisfied that, despite the difficulties there may be in challenging the statement, it would not be contrary to the interests of justice for it to be admissible.''
 The entire subsection should be beefed up, and that should start with paragraph (a), which states that evidence is admissible if 
''any provision of this Chapter or any other statutory provision makes it admissible''.
 Paragraph (a) appears to override paragraph (d). Amendment No. 405 should be inserted to deal with that. I would move the wording in paragraph (d) up to paragraph (a). We are setting up a statutory framework, yet paragraph (a) says that if a provision in this chapter makes hearsay evidence admissible, it should be admissible. I hope that that amendment may prompt some debate. 
 Amendment No. 406 is a probing amendment. It would be helpful if the Minister could explain the interrelationship of paragraphs (a), (b), (c) and (d). It is not the first time in the Bill that it is not completely clear whether paragraphs are intended to be comprehensive or whether only one of them need apply. The reason behind the amendment is to ascertain the intention. Amendment No. 407 effectively does the same. 
 I shall leave the Liberal Democrat amendments, Nos. 370, 373 and 374, for others to deal with. Amendment No. 409 deals specifically with what I would call the Omagh rules. It would add to subsection (2)(i), which says: 
''the extent to which that difficulty would be likely to prejudice the party facing it.''
 I was concerned when we passed legislation after the Omagh bombing that it envisaged the possibility that a conviction could be based on hearsay evidence alone. 
 I hope that my amendments have provided some material on which we can examine the clause. It has always struck me that some of our current rules on hearsay evidence constitute a prohibition on the ability to present a case. For example, it seems bizarre that the poor old police officer must say, ''Acting on information received, I went to a property,'' rather than, ''I received an anonymous phone call, on the basis of which I went to a property,'' because it can be very useful to be able to amplify on the background to a case. Some categories of hearsay evidence, such as business documents, can properly be admitted, because it is usually possible to call someone to explain a document if someone else disagrees with its content. 
 The Bill would make a major alteration to the admissibility of hearsay evidence in criminal proceedings. At my meeting with the Minister of State, Lord Falconer, a distinguished civil lawyer, we considered every aspect of the Bill. It was fascinating to listen to him, but it was clear that he could not see the slightest reason why the civil rules should not apply. His attitude, which shone through all our discussions, seemed to be that if everything was thrown into the melting pot, a just result would emerge in the end. 
 Hearsay comes into that category. Except in so far as the judiciary decide to use their discretion to reign in the provisions, chapter 2 will widen the tests for admissibility of hearsay evidence virtually to those that apply under civil rules. I have doubts about doing that. One of the great strengths of our criminal justice system is that convictions are based on evidence that is direct and tested. Of course, that is sometimes inconvenient for prosecutors, because it may mean that there is a compelling suggestion that someone is guilty, but it is impossible to prove. An important safeguard lies in the fact that our system of justice requires the prosecution to satisfy jurors so that they are sure of someone's guilt. I hope that the Committee will bear that in mind as we consider the first group of amendments to clause 98.

Eric Illsley: Before I call the hon. Member for Somerton and Frome (Mr. Heath), I refer hon. Members to the rules of debate contained in Standing Orders. The bringing of refreshment other than water into the Room is not permissible in a Standing Committee. As from this morning, will hon. Members please refrain from bringing cups of coffee into the Committee Room?

David Heath: Thank you for that timely advice, Mr. Illsley. I do not think I have ever been guilty of that crime.
 First, I corroborate the impression—perhaps hearsay evidence—of the hon. Member for Beaconsfield (Mr. Grieve). I formed the same impression from our discussions with Lord Falconer. It gave me, a non-lawyer, cause for concern that his attitude was more cavalier than I might have expected. 
 I entirely support the hon. Gentleman's argument about amendment No. 403. We have encountered the difficulty several times before during our consideration of the Bill that an inclusionary, rather than an exclusionary, approach to drafting seems to have been taken. That is despite the fact that when one analyses what is meant, the provisions clearly intend to exclude inappropriate evidence, except in particular circumstances. I would accept the suggestion that the difference between the two formulations is one of mood music rather than reality, but it is important mood music. It is important that the statute is couched in the correct form. I, too, support the formulation and general approach that he suggested.

Lady Hermon: I differ with the hon. Gentleman in his description of the formulation as a change in the mood music. Subsection (1)(d) is a serious departure from the principle that hearsay evidence is not acceptable. Paragraph (d) is so vague and wide that it should be removed. This is more than a change in the mood music: it is a huge and quite unacceptable departure.

David Heath: I hope that our amendments will change the clause to the hon. Lady's liking. It is a matter of approach: saying that things will be in unless we exclude them rather than that things will be left out unless we include them. That is the architecture that I would prefer to see in the Bill.
 I would like to deal with the Liberal Democrat amendments. Amendment No. 522 is to an extent a 
 probing amendment, as it deals with codification. Codification should be complete if at all possible, and we have already heard expressions of support for giving this area greater and more explicit codification than at present. We must ask ourselves why subsection (1)(a) says 
''or any other statutory provision''.
 This Bill is the statute that counts. We should not have provisions elsewhere to be consulted by lawyers; they should be in this Bill. I hope that the Minister will tell me whether he has further provisions in mind or whether he feels that it is entirely satisfactory for provisions to be added to other legislation that does not amend the Bill, which is the primary legislation on these matters. If so, we have slipped from the principle of simple codification of the admissibility of hearsay evidence. It is a retrograde step, and he should reconsider it. 
 Amendments Nos. 370, 373 and 374 go to the core of what the hon. Member for North Down (Lady Hermon) described as one of her great concerns about the clause. Amendment No. 370 could not be more explicitly supportive of her position—it would delete paragraph (d)—and I hope that she will feel able to support it. 
 We have suggested an alternative and better formulation, one drawn from clause 100(4)(b) of the Bill itself. The interests of justice test must be framed as clearly as possible and must give sufficient discretion to the court to exclude unfair evidence. It is surely a basic principle that a court should be able to exclude evidence that is patently unfair. It is necessary to remind the court of the need to take into account the difficulty in challenging a statement if the person who made it is not present in the court. Amendment No. 374 would change subsection (2)(i) so as to allow a residual discretion to the court to take other circumstances into account.

Vera Baird: I wonder whether the import of amendment No. 374 is not already present in subsection (2), which states:
''In deciding whether a statement not made in oral evidence should be admitted under subsection (1)(d), the court must have regard to the following factors (and to any others it considers relevant)—''.

David Heath: Well, yes and no. It is there, but I do not think that it is clear enough: the interests of justice test is not set out with sufficient clarity.

Dominic Grieve: Does the hon. Gentleman agree that there is no overarching indication of there being anything that the court has to consider apart from paragraph (d)? Despite the difficulties that there might be in challenging the statement, it would not be contrary to the interests of justice for it to be admissible. That is insufficient in the context of what is intended by the provision to admit hearsay evidence.

David Heath: That is the point that I was struggling to make. Perhaps the number of interventions made it difficult for me to express it coherently. If the Government wish to go down that path, clarity is essential. The test in clause 100(4)(b) is appropriate. It would become redundant if the amendment were to
 succeed. By putting that up front—as the hon. Gentleman says—as an overarching consideration, we give the court no doubt about its discretion to ensure a fair trial and how it should approach its considerations. That is an essential safeguard for the admissibility of evidence that, until now, might not have been considered.

Michael Wills: I hope that it is still appropriate at this late stage, Mr. Illsley, to welcome you to the Chair and say how pleased I am to serve under your chairmanship and how happy I am to have emerged from the Extradition Bill to join you.
 I, too, would like to make a few preliminary remarks, picking up on the opening remarks of the hon. Members for Beaconsfield and for Somerton and Frome. I was surprised by the whimsical and inaccurate characterisation of my noble and learned Friend Lord Falconer and his approach to the Bill. Both hon. Gentlemen seemed to imply that the chapter is a radical departure from long-established and precious legal principles. That is not the case. Hearsay has long been a difficult and contentious area of law. It has been the subject of many studies and reviews, including those of the Law Commission and Lord Justice Auld. There is consensus that the current state of the law is not satisfactory and that it could benefit from change. That is our starting point. Far from the rather fanciful situation communicated by the hon. Member for Beaconsfield, we have based our proposals on the distinguished work that has been done, not least by the Law Commission. 
 We have heard a good description of amendments Nos. 403 and 404. I understand why they were tabled, but if we accepted them, instead of beefing up the Bill, we would risk wasting the chance to make an important change. The amendments would send the message that the primary focus of the court should be on excluding evidence. All hon. Members who have spoken have recognised that we are about introducing a more inclusionary approach. We do not want to promote a situation in which evidence is admitted in court only if somebody is familiar with the intricacies of the law and of precedent, rather than because the out of court statement provides the best available evidence for fact finders to consider. That is the fundamental point about the pursuit of justice in this case. We have cast the primary rule in inclusionary terms because that better reflects the principle that cogent and reliable evidence should be capable of being put before fact finders, subject to the important safeguards in the Bill.

Dominic Grieve: The Minister expresses himself not whimsically—I was not suggesting that—but in precisely the pithy way that the Minister of State, Lord Falconer, did, in saying that there is an upheaval. How do we know that the evidence is cogent and reliable? How is it tested? It cannot be tested if there is not an opportunity to do so through cross-examination in court. That goes to the nub of the problem.

Michael Wills: I absolutely agree that that goes to the nub of the problem. That is one of the reasons why the topic has been so contentious. I suspect that we shall
 come back over and over again to that point—some subsequent probing amendments go to the heart of the matter. However, although I agree with the hon. Gentleman, it cannot be right if there is evidence that shows that the interests of justice are being denied by excluding precisely the evidence that is capable of proper scrutiny by fact finders.
 I shall give some examples. No one is suggesting for a moment that there should not be proper safeguards. However, I would ask the hon. Gentleman to consider now whether the interests of justice are properly served by continuing the law as it is, or by his amendments, which would dilute the changes that we seek in the interests of justice. 
 As I said in my opening remarks, everyone accepts that the current rule is not operating properly. The Law Commission graphically described that. The courts have shown a general reluctance to exercise their discretion to admit hearsay, even when it would be of value in ascertaining the truth. When the Law Commission examined how the exceptions in the Criminal Justice Act 1988 were operating, it found 
''a lack of consistency in the way in which judges exercise their discretion under the act. Some—perhaps those with a traditional hostility to hearsay—regularly exercise their discretion to prevent hearsay statements being admitted.''
 The Government have concluded that those problems can be resolved only by a combination of legislative and cultural change. That is the nub of our resistance to the amendments. Practitioners should be encouraged to focus on the principle that all relevant hearsay is potentially admissible as evidence—I stress ''relevant'' and ''potentially''. We accept what the hon. Gentleman said, that hearsay evidence is generally less satisfactory than first-hand evidence, but there might be cases in which that is not so, and in which the interests of justice would be best pursued by admitting hearsay evidence. In other cases, hearsay is all that is available and should therefore be considered by the court. 
 The Government's belief in the need for reform is supported by the Runciman royal commission, which concluded that hearsay evidence should be admitted more than at present, and by Sir Robin Auld, who proposed that hearsay should be generally admissible in criminal proceedings. The terms of the primary rule in the clause are entirely consistent with the Law Commission's findings. There has been wide support for the Law Commission's proposal for automatic admission for certain categories of evidence, with judicial discretion to admit other cogent and reliable evidence.

Dominic Grieve: Is it not the case that the Law Commission in fact proposed wider categories of automatic exception than we have now, and a judicial discretion to admit hearsay when the interests of justice required that? It certainly did not say that there should be upheaval of the sort that the Minister and Lord Falconer have eloquently described. Lord Justice Auld decided to go much further than the Law Commission. If the Minister came to the Committee and said that he favoured the
 Law Commission's approach, he would have my support. I have the gravest reservations about Lord Justice Auld's proposals, as I do about a lot of things that he said in his report.

Michael Wills: I am very interested in the hon. Gentleman's views on both the Law Commission's and Sir Robin Auld's report. However, we are adopting our own proposals. I was making a general point, which he has confirmed. Our general approach is that there should be automatic categories of admissibility, and judicial discretion elsewhere. The exact terms are neither the Law Commission's nor Sir Robin Auld's, but there is consensus on the need for change—not upheaval, but the carefully considered change embodied by the Bill.
 The Bill gives Parliament its first chance properly to consider comprehensively reforming the rules on evidence in criminal trials. Like me, the hon. Gentleman knows that such opportunities come round very seldom, and we should not lose this opportunity to achieve a cultural change that is widely accepted as necessary. Of course, it would not be helpful—

Dominic Grieve: Will the Minister give way?

Michael Wills: I will finish my point and then give way to the hon. Gentleman, because my comments are obviously agitating him greatly. It would clearly not be helpful entirely to abolish the primary rule in criminal proceedings, as some commentators have advocated. By framing it in more positive and transparent terms, Parliament will send a clear message that, subject to the necessary safeguards, relevant evidence should be admitted when that is in the interests of justice.

Dominic Grieve: The Minister amuses me more and more as his peroration continues. Surely, the point is that the Government have chosen not to rip up the adversarial system of criminal justice, although they have come close to doing that in the Bill. I have always understood the reason for that to be that they appreciate that there is something intrinsically fair and good about a system that asks the jury to look at a set of facts and to find upon it. They should not get muddled up by the surrounding issues, which is what leads to many miscarriages of justice. However, the Bill proposes to remove those important blinkers, which must surely lead to the danger that convictions will occur on the basis of evidence that cannot be tested. Such evidence will not go to the nub of the issue and establish, on a proper test, that the defendant is guilty of the offence as charged.

Michael Wills: The hon. Gentleman's amusement clearly blinds him to the central point, and he has just eloquently described why the rule should not be changed at all. He absolutely misses the point that the current arrangements have led to a denial of justice in many cases, and I will be happy to supply him with the details after the sitting, so as not to take even more of the Committee's time. I am sure that he is well aware that people have been wrongly convicted and that such decisions have been overturned in the Court of Appeal. Criminals have escaped being brought to justice, in clear opposition to the common-sense view of the case and all the evidence outside, because of a
 technical understanding of procedures that has been inconsistently applied from court to court. That is what we must change. If he starts from the assumption that we must change the current system because it is unsatisfactory, he will, I hope, be led gently and inexorably to see the logic of our position.
 Let me make one last attempt to reassure the hon. Gentleman. If he reads all the clause, it will be clear to him that hearsay evidence will be admitted only if the relevant criteria apply. His worries are therefore unnecessary, and he is making rather a meal of a perfectly straightforward proposal that is rooted in a long-standing debate. 
 Let me clarify one other issue, which may help the hon. Gentleman. He asked about the grammar of the clause and about the word ''or'', but we would rather stick with our drafting. Subsection (1) refers to separate categories, and in a sense the word ''or'' applies after them all. Thus, the ''or'' at the end of paragraph (c) applies equally to paragraphs (a) and (b).

Dominic Grieve: I am grateful to the Minister, and I will certainly not press the relevant amendments to a vote. However, this modern form of drafting, which we saw in the Proceeds of Crime Bill, has little to commend it. On a straight reading of the text, there remains an ambiguity. I just do not understand why modern drafting of Bills has achieved that peculiar imprecision.

Michael Wills: Well, there we are.
 Amendment No. 522, which was tabled by the hon. Member for Somerton and Frome, would prevent out of court statements from being admitted as evidence unless provision had been made for that in chapter 2. The hon. Gentleman may have guessed that we shall have to resist his amendment, too, because it would nullify several existing statutory exceptions to the hearsay rule, including the admissibility of confessions by the accused under the Police and Criminal Evidence Act 1984. I am not sure whether that was what was the intention, but it would be the effect. 
 The Law Commission has published a list of the miscellaneous statutory provisions on admissibility and it might help the hon. Gentleman if I read out a few of those at random. They are in appendix C.

David Heath: I am most grateful for the Minister's kind offer to read out his list, but I am not really the one who needs to be satisfied on this point. The ones to be persuaded are those who will want to use the Bill in future. It would be useful if the list were to be included as a schedule to the Bill. If we want to produce a code, let us produce one that includes all relevant factors, not just some.

Michael Wills: I understand the hon. Gentleman's desire for clarity. However, although the Law Commission has produced the list in appendix C, it makes it clear that, for all its hard work, the list is not exhaustive. I do not want to tire the Committee by reading the whole list, but the hon. Gentleman can see that it is a long one. We want to ensure that we do not inadvertently miss something. The statutory exceptions are important. They should remain, and
 we think that our approach is the best way of retaining them.
 It is a matter of record that the Law Commission considered what should happen to the provisions in question. It discussed the point that the hon. Gentleman has made. After consultation, which, as he will know, is always a lengthy and thorough process where the Law Commission is concerned, it decided that the provisions should not be repealed or codified in the way that he would like. It has not been suggested that they cause any difficulty. It is impossible to be sure that that approach would not cause difficulty for the parties.

David Heath: It is not my intention to repeal the other statutory exceptions. My aim is simply that what is supposed to be a simplifying and clarifying provision in the Bill should codify them. The Minister would help me if he would make available to the Committee the list that he has. I am sure that he would be happy to do so. It should not be beyond the wit of those who drafted the Bill to produce a provision that shows in some way what other exceptions exist—a point on which the Bill is now silent.

Michael Wills: I understand the hon. Gentleman's concern. I remind him that there is a danger in producing a list that purports to be exhaustive and turns out not to be. After all its work and consultation, the Law Commission did not feel the need to produce an exhaustive list. I am not sure that it would be wise for us to do so either.

Paul Stinchcombe: I wonder, nevertheless, how dangerous it would be to include the list in a schedule to the Bill. After all, the only measures that would be omitted would be those that neither the Law Commission nor Robin Auld could find. If they could not find them, I tentatively suggest that they might not be all that important.

Michael Wills: One must ask what purpose would be served by writing in a list. I am not sure that it would make any difference. One always wants Bills to be kept as clear and simple as possible. Amendments should be made only when they can positively be justified by outcome. I am not sure that that is the case here.

Paul Stinchcombe: It just strikes me that it is infinitely clearer to have a schedule that indicates precisely which statutory rules survive than to create an open-ended situation in which we do not know which survive.

Michael Wills: But the point is precisely that we cannot be sure which statutory rules will be caught. My hon. Friend said as much himself. He said that it is likely—I am sorry if I am paraphrasing him—that there will be no others, but we cannot be sure. Therefore, one must consider what positive result would be gained. The intention is clear in the Bill. We do not need to complicate things further by changing the wording.
 Amendment No. 405 would require the court to satisfy itself that the interests of justice would be met before any out of court statement could be admitted as evidence under this chapter or under any other statutory provision. That would undermine one of the most important elements of the Law Commission's 
 proposals for reforming hearsay evidence in criminal cases—that there should be much greater certainty that out of court statements will be admitted as evidence. As with amendment No. 522, amendment No. 405 would affect a large number of sundry statutory provisions that provide that out of court statements may be admitted as evidence, although there is no evidence to suggest that those provisions are not operating properly. 
 The hon. Member for Beaconsfield referred to business records. One good example is routine banking transactions under the Bankers' Books Evidence Act 1879, which would become subject to leave requirements under the amendment. I am unsure whether that was the intention of those who tabled it, so I shall confine my response to their chief concern. 
 The Law Commission gave careful consideration to the whole issue. It spent three years examining how the law operates in practice, developing recommendations for change and consulting on them.

Dominic Grieve: In reality, if one wants to admit business records in a trial, leave must always be sought. One indicates that one intends to make use of business records for the purpose of proving their content, and it is for the defence to raise any objections before the trial commences. That commonly happens. The distinction between obtaining leave and not obtaining leave is greyer than the Minister realises.

Michael Wills: No, no, I am well of aware of it. As the hon. Gentleman will also be well aware, he is conflating two different things.
 The Law Commission carefully considered this entire area of law and made a total of 50 or so recommendations, but at the core of the scheme is the proposal that some rules should allow the automatic admissibility of evidence, in which decision judicial discretion would play no part, in addition to the use of inclusionary discretion to ensure that the interests of justice are served. I believe that the Law Commission scheme strikes the right balance between certainty and flexibility, and that is the nub of this discussion. If the rules of admissibility rely entirely on judicial discretion, there can be no certainty for the parties. That is of particular concern given the Law Commission's worrying findings that judges are likely to be over-cautious in exercising their discretion under the Criminal Justice Act 1988. 
 The proposal of a hybrid approach to admissibility has received support from a wide range of practitioners, including the judiciary, the Law Society, and the General Council of the Bar. The Home Affairs Committee also voiced its support for the modified exceptions. Statements would automatically be admissible in two broad categories of case: first, where the maker of the statement is unavailable for a legitimate reason, for example, because they have died, are ill, have gone abroad or disappeared, provided that reasonable steps have been taken to find them; and secondly, business records would automatically be admissible unless their reliability was doubtful. In each case, there would be 
 an underlying justification for automatic admissibility. In cases where witnesses are unavailable, it is necessary to admit the evidence in hearsay form because the court will otherwise be deprived of that evidence. The categories of admissibility are specifically designed to cover cases where direct evidence is unavailable, as well as hearsay evidence of a kind that is likely to be reliable. For instance, business documents are inherently reliable, and are likely to be superior to oral testimony. 
 Chapter 2 includes a number of important safeguards for parties against whom out of court statements can be adduced. The hon. Member for Beaconsfield rightly pointed to the importance of being able to challenge hearsay evidence in court. Of course, we accept the importance of that principle, which is why we have included safeguards. Under clause 100, a statement will be admissible only if the witness is unable to give it in person; but the absent witness must be identified so that the evidence can be challenged. The court will have the power under clause 101 to direct that a statement is not admissible as a business document if it is satisfied that the statement's reliability is doubtful. 
 Advance notice will be given that hearsay evidence is to be used. The court will have a duty under clause 109 to stop a trial where a conviction would be unsafe because the prosecution had depended wholly or partly on unconvincing hearsay evidence. The discretions in common law and under section 78 of the Police and Criminal Evidence Act 1984 to exclude prosecution evidence in the interests of fairness are retained, and courts will have a new power to exclude evidence where its admission would result in the undue waste of time. We believe, as does the Law Commission, that those safeguards will be sufficient to address any problems that might occur in the limited circumstances in which hearsay evidence is automatically admissible. 
 In summary, the changes will address uncertainty about whether hearsay evidence is admissible. I hope that the Committee will agree that that is a good thing. The Bill will also ensure adequate safeguards to replace existing judicial discretion to exclude such evidence under the 1988 Act. I hope that the Committee will agree that that, too, is a good thing. Finally, if the Committee has followed me so far, it should agree that a convincing case has been made for the change. 
 Amendments Nos. 370, 373 and 374 would affect the courts' discretion, under clause 98(1)(d), to admit out of court statements if they do not fall within the recognised categories of admissibility. Amendment No. 370 would remove that discretion altogether. Given the importance that the Law Commission attaches to the proposal, and given the fact that it has widespread support, we believe that there is an overwhelming case for keeping the measure in the Bill. However, we recognise that difficult problems will not go away simply because we have taken steps to legislate for them. 
 However careful the Committee is in considering the various categories of hearsay evidence that could be included, some cases will almost certainly fall 
 outside the Bill, and that could perpetuate some of the current problems. The question is whether cogent and reliable hearsay evidence should be excluded simply because Parliament was unable to anticipate that a further exception would be necessary. It would be difficult to defend such an outcome when the need for an inclusionary discretion was widely supported by practitioners and academics alike. 
 One of the most forceful criticisms of the current hearsay rules is that reliable evidence can be excluded because it does not fall within any of the pre-existing categories. That can sometimes make it impossible for a defendant to put before the court credible evidence that points to his innocence, which could thus render a fair trial impossible. The Law Commission was undoubtedly influenced in its findings by the many cases in which defendants over the years have been denied the opportunity to lead evidence directly relevant to their innocence. The removal of the exclusionary discretion in subsection (1)(d) could lead to more cases of that kind. 
 Opposition Members are clearly interested in the pursuit of justice. Here is an example to give them pause for thought. In the case of Thomas, the defendant was prosecuted for the murder of his girlfriend. Fixing the time of the murder was an essential part of proving that he must have committed the crime. An eight-year-old child told the police that she saw the victim leaving her home at a time after the prosecution claimed that she was dead. 
 By the time the case came to trial, the child could not remember anything about when she saw the victim. Her earlier statement was inadmissible as evidence, because under the hearsay rule the trial judge had no residual discretion to admit it. The Court of Appeal upheld the judge's ruling, but it allowed the appeal because it felt that the hearsay rule was operating to obscure the truth, and that a conviction obtained in such circumstances could not be regarded as safe. That situation cannot be satisfactory; it could have led to a serious miscarriage of justice that could be remedied by the Court of Appeal only after a great deal of public money had been wasted and the defendant had possibly been deprived of his liberty. We have to take steps to change it. It is an important part of preventing future miscarriages of justice. 
Mr. Heath rose—

Michael Wills: I will just finish, if I may, because I want to give the hon. Gentleman a quotation from Justice, which said:
''It is a powerful argument against a strict exclusionary rule that miscarriages of justice can be avoided only if the appellant is lucky enough to find a court prepared to decide his case otherwise than according to the law''.

David Heath: I am listening carefully to the Minister's example in arguing against amendments Nos. 370, 373 and 374. I am not clear how amendment No. 373, which says
''any risk that its admission or exclusion will result in unfairness to any party to the proceedings—''
 would not allow for the admissibility of the evidence that he says would be excluded by virtue of the amendments.

Michael Wills: I must apologise that I am taking so much time. I am trying to give each amendment due weight and I am still dealing with the effects of amendment No. 370. If the hon. Gentleman will bear with me, I shall come to amendments Nos. 373 and 374 and will explain why we cannot accept them.
Mr. Heath rose—

Michael Wills: I shall give way when the hon. Gentleman has heard what I have to say on amendments Nos. 373 and 374.
 The case that I described makes it clear that inclusionary discretion should be available to both the prosecution and the defence. The vast majority of those whom we have consulted agree that that is the only sensible way for the law to develop. It is recognised that parties will have to overcome a significant hurdle if they want to tender evidence under subsection (1)(d). Before the court can grant leave to admit such a statement, it must be satisfied that, despite the difficulties that there might be in challenging a statement, it would not be contrary to the interests of justice to admit the evidence. The list of factors in subsection (2) deliberately focuses on whether the circumstances surrounding the making of the statement suggest that it can be treated as reliable evidence, despite the fact that it will not be subject to cross-examination. 
 Finally, I should remind the Committee that, while this is a new development in the law here, it is not novel in other jurisdictions. In the United States, federal rules of evidence contain an exclusionary rule with categories of exceptions and a residual inclusionary discretion. 
 The hon. Member for Somerton and Frome will be relieved to hear that I shall now turn to amendments Nos. 373 and 374.

Lady Hermon: Before the Minister moves on, will he clarify a little phrase in subsection (2), which appears to provide an exhaustive list. It says that
''the court must have regard to the following factors'',
 and then provides a list from (a) to (i). However, the reference to ''following factors'' is qualified by the phrase 
''and to any others it considers relevant''.
 What other relevant matters might the court consider?

Michael Wills: That is for the court to decide, and I addressed precisely that point earlier.
 Amendments Nos. 373 and 374 relate to the concerns of the hon. Member for Somerton and Frome. Amendment No. 373 would require the court to take into account any unfairness that might result if hearsay evidence was admitted under the court's residual discretion. I understand the concern behind the amendment, but the list already deals with it, as my hon. and learned Friend the Member for Redcar (Vera Baird) said. Paragraphs (h) and (i) require the court to take account of any difficulty in challenging a statement and of the extent to which that difficulty 
 would prejudice the opposing party. That test is intended to allow the court to take into consideration any unfairness that might result from the admission of certain evidence. I do not think that the Bill requires further clarification, and I hope that I have given the hon. Gentleman the explanation that he needed. He looks puzzled, though.

David Heath: I would be grateful if the Minister could explain why he uses a different formulation in clause 100, on which amendment No. 373 draws. As a general principle of drafting, it would seem sensible to use the same words in different parts of the Bill if one wants to achieve the same result.

Michael Wills: In designing the Bill, we have tried to codify procedures as far as possible and to leave discretion where appropriate. Clause 98 sets out our approach to general admissibility, but clause 100 deals with particular categories of admissibility, which do not go to the heart of unfairness in the general sense used by the hon. Gentleman.
 We are sympathetic to the intention behind amendments Nos. 373 and 374. We do not resist the principle behind them, but we believe that it is covered by the present wording. I hope that the hon. Gentleman will not press his amendments to a vote. I will be happy to discuss the issues arising from clause 100 at the appropriate moment, but for now, I simply ask him to look at the two clauses and to consider whether his concerns are not already met. Our belief is that they are and that there is no need for the amendments. 
 Under amendment No. 409, different rules of evidence would apply to the prosecution and the defence, because only the prosecution would have to show that they had other evidence to corroborate their case before hearsay evidence could be admitted. It is a general principle that the rules of evidence should, as far as possible, operate in the same way for the prosecution and the defence.

Dominic Grieve: That may be the case, but the burden is on the prosecution throughout a criminal trial to prove their case, except where the burden has been tampered with or reversed. There is nothing unusual in a rule that puts a greater burden on the prosecution than on the defence with respect to what is needed to prove a case. I find nothing exceptionable about that. It is an important little amendment.

Michael Wills: The hon. Gentleman is again conflating the burden of proof and the rules of evidence. He has a distinguished legal background and I hope that he would accept that those are different, and that they determine different outcomes. Different rules, and the adoption of a burden that was asymmetrical between the prosecution and the defence, could lead to very unsatisfactory results. For example, the prosecution might be entitled to cross-examine a defence witness on hearsay evidence that the witness had given in chief, but that the prosecution, had it called the witness, would not be able to elicit. I am sure that the hon. Gentleman cannot believe that that would be
 satisfactory. That is why I am not convinced that the amendment would be helpful in developing the law.
 In passing, the hon. Gentleman mentioned human rights legislation. The amendment raises the important issue of whether the prosecution's use of hearsay evidence would be compatible with the right of the accused to a fair trial under article 6 of the European convention on human rights. He did not articulate the matter in those terms, but I think that that is the burden of what he said. He articulated the same concerns in his remarks about the burden of proof lying heavily on the prosecution. 
 Those issues were examined extremely carefully by the Law Commission as part of a detailed examination of the relevant convention law. It considered whether the risk of a breach of the convention, when a person stood to be convicted on hearsay evidence alone, was sufficiently serious to warrant requiring the court to stop the case, where the hearsay was the only evidence of an element of the offence. In the light of the consultation responses, the Law Commission concluded that that was an unduly cautious assessment of what the convention requires, and that the prerequisite that there should be other evidence would introduce complexity and endless legal argument about what constitutes supporting evidence. 
 We agree that such a requirement would amount to unnecessary gold-plating, and that it would in effect reduce hearsay statements to the level of an inferior form of evidence that could at most be corroborative of direct oral evidence. The commission was satisfied that the safeguards that it proposed, which are in the Bill, and in particular the duty on the court, under clause 109, to direct an acquittal if a case depends wholly or partly on unconvincing hearsay, would provide adequate protection for the accused. 
 Several cases have been brought under the European convention on human rights since the commission published its final report on hearsay, but none of those suggest that it has underestimated the significance of the convention in developing its proposals. 
 I have taken much of the Committee's time. I hope that I have said enough to persuade hon. Gentlemen not to press their amendments to a vote.

David Heath: It is quite difficult to help the Minister. Those of us who have spoken from the Opposition Benches have made it clear that we are not desperately opposed to the proposal but simply want it to be couched in the most appropriate terms. The Minister has not entirely satisfied me—I am not sure what the hon. Member for Beaconsfield thinks—that he has dealt with all the issues that we raised.
 The Minister's remarks on amendment No. 522 probably failed to convince most members of the Committee. Provisions are being codified. The codification should be complete, as far as possible. If the Law Commission cannot find other statutory exceptions, why on earth are we bothering with them? The circumstances in which hearsay evidence may be admissible are comprehensively set out in the context of the Bill. I do not want to repeal important exceptions—I simply want them to be included in the 
 Bill so that everyone knows what rules are to be applied. It does not make sense for someone to keep scurrying around ancient statute to find a basis for admissibility of evidence if we are purporting to produce in the Bill a comprehensive list of that which may be admitted, the reasons why it should be admitted, and the context in which it should be admitted. I hope that the Minister will think again. I do not intend to press the amendment today, because I want to allow him some time in which to consider the argument that has been put. 
 On amendments Nos. 370, 373 and 374, it is an unsatisfactory process to take a series of linked amendments and to argue against them individually, ignoring the cumulative effect. I tried to steer the Minister away from that course, but he would not be steered. Where a deletion and a subsequent substitution are proposed, it does not make for a cogent argument to deal only with the effects of the deletion. I shall consider whether it is appropriate to divide the Committee on amendment No. 373. I shall listen carefully to the views expressed by the hon. Member for Beaconsfield. Serious questions still remain unanswered.

Dominic Grieve: I am very grateful to the Minister, as he went to a lot of trouble in answering the amendments. He not only dealt with individual amendments, but provided a helpful overview of the Government's approach. I found the Minister extremely convincing on that subject, but curiously, when he was defending Lord Falconer, I found him rather less convincing. From that meeting I derived the impression—I noticed that the hon. Member for Somerton and Frome had it too—that if the admission of hearsay evidence is sufficiently well controlled by the court, miscarriages of justice will not result, and that it is desirable that hearsay evidence be put before juries to be evaluated in exactly the same way as any other category of evidence and, if necessary, acted upon when thought to be reliable. That is the general tenor of the clauses in chapter 2. I do not think that the Minister would necessarily disagree with me on that.
 I do not want to debate angels dancing on the head of a pin, because I do not think that the differences between myself and the Minister are all that great, as long as we steer clear of philosophy. However, the trouble is that philosophy creeps in. I am left with the impression that I start on a different premise, which is that the way in which we have handled first-hand primary evidence in this country is distinct from that which is followed in continental systems of inquisitorial justice, and that has much to commend it. It leads to the keeping of evidence within a narrow compass and to a series of questions being asked of the jury, rather than a wide-ranging inquiry. We touched on that when we debated the issues of bad character and previous convictions—and on the reasons why that causes me anxiety. Primary evidence is therefore a good basis on which a finding of guilt or innocence can be made. When one starts to stray outside that, there are dangers that the material that is presented to the court becomes much harder to evaluate and can—if I may use the expression—contaminate the thinking 
 processes of those who have to be the judges of fact. They might no longer see the wood for the trees. 
 That said, I fully accept that there are exceptions. There are exceptions in the current rules. I have no difficulty with that. It seems that they have been formulated in an admittedly ad hoc manner over the years, although they also appear to have a great deal of common sense behind them. I was also well persuaded by some of the Minister's decisive points in the case of Thomas about problems where hearsay evidence has been getting in the way of achieving just results. I accept that that applies as much to the prosecution as it does to the defence, although I tend to the view that I expressed in my earlier intervention that the notion of equality of arms in criminal trials is not completely correct, nor should it be. Those who set out to prove something face the problem of burden of proof. As the Minister said, I should not confuse burden of proof with the right to adduce evidence of one kind or another. Amendment No. 409 therefore may be poorly drafted. I certainly make no pretence of having great drafting expertise, especially in the light of clause 109. 
 However, that highlights the nature of the problem that we do not wish to see, and the Minister does not wish to see, of a situation in which convictions are largely based on hearsay evidence that has been difficult to test, but which judges at the time thought cogent and—I forget the other word, but I shall return to it. However, because the hearsay evidence was never tested, it turns out five or 10 years later to be far less cogent than was originally thought. 
 My concern when I started to read these clauses was that we are opening the gates so wide to the admissibility of hearsay that we shall go much further than the Minister's concern, which is that some judges have been reluctant to admit hearsay under the existing rules, and make its admissibility a commonplace. In clause 98, subsection (1)(d) is the door that swings open to do that. Apart from that paragraph, the clause is quite well circumscribed, because there is an attempt in this chapter, clause by clause, to set out the various areas in which hearsay should apply. If my focus goes anywhere, it is to subsection (1)(d). I sought, to use my words at the outset, to beef up that paragraph and highlight its potential dangers. From that point of view, amendment No. 373, to which the hon. Member for Somerton and Frome spoke, seems to do that. The amendment is not destroying the purpose of the hearsay evidence provisions. In a mild way, it is tweaking the Bill to provide a powerful reminder about the dangers of unfairness, when, slightly bizarrely, clause 98(1) says nothing about it and clause 98(2) relates unfairness to the question of difficulty and prejudice only. Clause 98(2)(h) could be tweaked to use slightly stronger language

Michael Wills: I should be grateful if the hon. Gentleman would clarify the difference—I am happy to hear from the hon. Member for Somerton and Frome also—between unfairness and the wording in subsection (2)(i), which states:
''the extent to which that difficulty would be likely to prejudice the party facing it.''
 I may be missing something, but I think that we have already covered the point.

Dominic Grieve: I think that I made it clear that the amendment alludes to the specific difficulty in challenging the statement. Prejudice may come from other circumstances, although I fully accept the Minister's argument that one could argue that if one says, ''I am unable to challenge this difficulty in challenging the statement'', one is prejudiced. That highlights the difficult decisions that judges will have to make. They will presumably look to statute for guidance, because they will be unable to look anywhere else until we get judicial decisions.
 I have a preference for the way in which we worded amendment No. 373. However, I also accept—being reasonable, as I hope I always am—that it is quite a minor matter. Nevertheless, as I want to highlight my concern on behalf of the official Opposition that the question needs to be examined, I have a choice: I can either agree not to press the amendment and to think more carefully about what the Minister has said—and reread it, as it is important to do, in Hansard; or I can press the matter to a vote to emphasise that we are unhappy about the extent to which the use of the provision could go beyond what the Minister intends.

Michael Wills: We are sympathetic to such concerns as the hon. Member for Beaconsfield and the hon. Member for Somerton and Frome have raised. We are not dismissing them. The hon. Member for Beaconsfield mentioned that judges would have nothing but statute to rely on. They would also have recourse to the proceedings of this Committee. I think that I said—I am happy to repeat it so that there is no doubt about it—that we believe that clause 98(2)(i) deals with the point. The test that we have imposed is intended precisely to allow the court to take into consideration any unfairness to the parties that might result were the evidence in question to be admitted. I hope that that reassures the hon. Gentlemen, whose concerns are understandable.

Dominic Grieve: The Minister is very persuasive. In the circumstances I shall not press any of my amendments to the vote. I intend to go away and read the Hansard—I may be the last person to do so, because it is a very diligent lawyer who seeks out the Committee Hansard about a passage of an important statute. Someone may still decide to do it. In any event, I shall reflect on the matter, because I do not want to give the impression that I think that it is impossible to codify, or that all hearsay evidence should be excluded. As the Minister will have appreciated from my opening comments, there are clearly categories of hearsay that can be very helpful.
 Nevertheless, I am concerned—and all I can do is to repeat this before I sit down and ask leave to withdraw amendment No. 403, which was really a trigger, and which I would not really want to put to the vote anyway—that the Bill will make the admissibility of hearsay commonplace. The mischief will lie in clause 98(1)(d) and because of the way in which the provision is put together it will be difficult for judges to resist it. 
 The categories of hearsay set out in clauses 100 and 101 are clearly defined. They are likely to come into play as a result of formal applications—events in court that mean that parties are prepared to argue about admissibility, after which the document is introduced. Under clause 98(1)(d) I can envisage all sorts of throwaway lines by witnesses in the witness box, that they would previously have been told to keep quiet and not to pursue, suddenly becoming a live part of the proceedings. That may prove to be quite difficult to regulate in practice. It may also take up a great deal of court time. That is my anxiety about the open door of clause 98(1)(d), although I also acknowledge that the Minister is probably trying to provide for the exceptional circumstances that fall outside the others that he has envisaged. I have explained the possible danger. 
 I have spoken enough. The Minister, like me, may care to reflect on the issue.

David Heath: This has been a helpful coda to the debate. I too undertake to study carefully what the Minister has said. I hope that he, in turn, will examine the different wording that he has chosen to employ elsewhere in the Bill to express the same concept. I find that perplexing. The Minister is nodding his head, and on that basis I shall not, in due course, press amendment No. 373 to the vote.

Dominic Grieve: I was mindful that, as we were of like mind, there should be an opportunity for both of us to consider whether we wish to press the amendment to the vote. It has not been easy, but, having listened to the Minister and been half persuaded by him, I beg to ask leave to withdraw the amendment.
 Amendment, by leave, withdrawn.

David Heath: I beg to move amendment No. 371, in
clause 98, page 57, line 27, at end insert— 
 '(1A) A statement under subsection (1) may be admitted only if the court is satisfied that, having regard to subsection (2), it would be in the interests of justice for it to be admitted.'.

Eric Illsley: With this it will be convenient to discuss the following:
 Amendment No. 372, in 
clause 98, page 57, line 29, leave out 'subsection (1)(d)' and insert 'subsection (1)'.
 Amendment No. 408, in 
clause 98, page 57, line 29, leave out '(d)' and insert '(a)'.
 Amendment No. 377, in 
clause 105, page 63, line 20, at end add— 
 '(4) In exercising its discretion under section 98 (1A) to admit evidence under subsection (1), the court must give reasons why, despite the difficulties there may be in challenging the statement, the evidence should be admitted.'.

David Heath: This is another attempt at the same argument, so it might be disposed of rather quickly. It seeks to insert a clear overriding test that would apply to any consideration under clause 98(2). It would ensure that the court had the discretion to decide that a statement might be admitted, but only if it was in the interests of justice to do so. The Minister has claimed throughout our debates that that is the purpose of the
 codification and of the change in procedure. He wants to see the interests of justice served, as do I, and I want that to be explicit in the Bill.
 The Minister may argue, although I hope that he does not, that there would be tautology in introducing the amendment in its present form, given other amendments that we have considered. There is an argument for debating amendment No. 371 in the same group as those other amendments, although it is perfectly proper to give it a free-standing debate. I hope that the Minister will not take such a narrow view. I hope that he will recognise that we seek to insert a wording that overarches the entire provision to ensure at least a basic test of fairness of admissibility. 
 It should be clear that in certain circumstances the court has discretion. The Bill must enshrine the protection that if a statement or evidence is prejudicial to the interests of justice, it will not appear in court. I am sure that the Minister will argue that clause 98 already contains such protection. I have some difficulty in reconciling subsection (1) and subsection (2). The absence of an overarching provision in subsection (1) to qualify every consideration under subsection (2) causes me concern. There is insufficient clarity. I hope that the Minister will consider it to be in the interests of clarity to have such an overarching provision. 
 Amendment No. 377 leaps ahead to clause 105 to deal with multiple hearsay evidence, and we shall discuss that in greater detail later. Whatever difficulties there may be for hearsay evidence must be multiplied for multiple hearsay evidence. That one is at a remove of one, two or three stages from the source of the original evidence means that there is a greater risk of error and misunderstanding. It is also more difficult to challenge the trail by which multiple hearsay evidence has been adduced. That could put the defendant at a significantly greater disadvantage. On the other hand, there are circumstances in which, for the purposes of justice, the evidence should be admissible. No doubt the Minister has examples that can explain that argument. 
 Our simple view is that the court must take exceptional care when admitting multiple hearsay evidence, because it might, on a Chinese whisper basis, introduce distortions. It is not unreasonable for the court to explain why it has come to its considered view that the evidence should be admissible, despite the difficulties that that suggests for the defendant and for court procedures. Whether the Minister accepts or rejects the proposition, I hope that he will explain why, and will accept that new difficulties are introduced with the admissibility of multiple hearsay evidence. He cannot suggest that it will immediately overcome the manifest difficulties that exist in court proceedings in trying to serve the interests of justice.

Dominic Grieve: This is a return to the previous theme. However, it has one difference in that if amendment No. 371 were to be accepted, it would spell out in the Bill a single, unified interests-of-justice test for all forms of hearsay evidence. I find that singularly unexceptionable and hope that the Minister might too. If he wishes to argue against it, I hope that he will give us good reasons. As the hon. Member for
 Somerton and Frome has rightly pointed out, a whole series of protection statements is included in the clauses, but each is worded slightly differently. It should be possible to have a unified test, and that which is proposed has much to commend it.

Vera Baird: I am interested in the hon. Gentleman's point. However, I wonder whether he has considered that the test that he would apply to all of clause 98(1) would add an extra test in relation to material that will be admitted under clause 98(1)(b). That material is already admissible under the extant rules. The effect would be to require it to jump another hurdle before it came in. I thought that the hon. Gentleman said that he was in favour of widening the provisions, not narrowing them.

Dominic Grieve: If that is what the amendment would do, would the hurdle be very difficult? Even if there were an extra hurdle as part of the general act of balancing the entire hearsay rules, would it do much harm? I take as an example the rules of reputation or family tradition. They would be subject to the test that they should be
''admitted only if the court is satisfied that, having regard to subsection (2), it would be in the interests of justice for''
 them 
''to be admitted.''
 I am not sure that I would lose sleep over that. I do not think that the hurdle would be of such significance as to cause trouble any more than the res gestae rule might.

David Heath: Does the hon. Gentleman agree that it is not so much a hurdle as the starting line? If something cannot pass the initial test of the interests of justice, none of the rest should be considered at all. That is fundamental to the legal system. I am surprised by the hon. and learned Lady's intervention.

Dominic Grieve: In fairness to the hon. and learned Lady, she makes a perfectly good point. Here we are, trying to find a formula to apply to the Bill that provides a framework statement about restrictions on admissibility, and one of our problems is that the previous rules already contained a multiplicity of tests based on the same philosophical principles. Clause 102 covers public information, reputation as to character, reputation or family tradition, res gestae, confessions, admissions by agents, common enterprise and expert evidence. Those provisions are included precisely because it has been thought to be in the interests of justice to admit such evidence. Indeed, few people quibble with that. Exceptional circumstances may subsequently arise in which the extra hurdle might have an impact, but perhaps that is how it should be. The res gestae rules are capable of doing injustice. They rely on the fact that what is related was said at the time by individuals. That does not mean that what the individuals said was true, but it is useful evidence.

Vera Baird: In fact, it was the res gestae rules that I was most concerned might not make it over the hurdle. It can happen—I have forgotten the name of the case that illustrates this—that someone whose throat has just been cut says, ''Dominic Grieve did it'' and then dies, but one can do nothing to challenge that evidence. If one is trying to achieve balance, it might
 not be in the interests of justice to include that evidence, but it is overwhelmingly necessary that it should be included. That area gives me most cause for concern and defeats the hon. Gentleman's argument.

Dominic Grieve: I deliberately avoided the rules relating to res gestae because I could see that it was one of the central issues. I was trying to think of examples on my feet and the hon. and learned Lady has provided me with one. She is right. A person can be convicted because a defendant, whose throat has been cut, says, in a dying declaration, that that person killed him. The general rule is based on the fact that if someone realises that they are dying, they would have no reason to tell a lie. That is the justification for admitting such evidence.
 Let me pick out a hypothetical possibility. If someone's throat has been cut but there is enormous evidence that he was a serial liar—indeed, he has a track record of being a liar—and that he had a grudge against me, his dying declaration might be coloured by all those things. In such circumstances, the test that I proposed should provide some protection. I must tell the hon. and learned Lady that there are exceptions to most rules, but I find it difficult to see how amendment No. 371 would make it difficult to admit any of the categories of exceptions to the hearsay rule set out in clause 102. I suppose that we could argue that the principle should not apply specifically to clause 98(1)(b). If the hon. and learned Lady were to suggest that to the Minister and the Minister were to adopt it, I would quickly sit down. 
 The grounds on which one might wish to exclude hearsay evidence need to be pulled together in some way. It struck me that the amendment, suggested by Justice and others, was rather a good one. Earlier, the Minister said that there was widespread support from all sorts of bodies for changes to the hearsay rules. Yes, there is and there was, particularly in relation to the Law Commission proposals, but when people actually read the Bill, much anxiety was expressed by several organisations, including Justice, about whether the provisions had been drafted too widely and whether they included insufficient safeguards. That is why they suggested the amendment.

Michael Wills: Of course I understand the instincts that gave rise to the amendments. We are getting slightly ahead of ourselves in relation to multiple hearsay, although the Government agree that there are inherent problems with it and, indeed, with normal hearsay. There is little between the principled positions that we all take on the issue—our initial instincts are the same.
 I am afraid, however, that we object to the amendments and will be unable to accept them. Our objections are essentially practical and relate not so much to the principle as to the practice. In chapter 2, we set out to provide a simplified and inclusionary approach to the admissibility of hearsay. It makes first-hand hearsay automatically admissible, subject to several safeguards, and provided that the maker of the statement, who cannot testify for specified reasons, has 
 been identified. Where a statement falls into one of the specified categories, there will be far greater certainty as to whether it will be admitted in evidence. 
 I ask hon. Members to consider the impact of the amendments. Amendment No. 371 would have incredible implications for a vast swathe of evidence in our criminal courts, including the common law categories preserved under clause 102. Each document, record and certificate used in a trial would have to be judged. The judge would have to intervene before an expert could call on technical knowledge. The court would have a duty to consider the interests of justice even when the parties agreed that the evidence should be submitted. I am sure that that was not the intention, but it would be the practical effect. Amendments Nos. 372 and 408 would have similar consequences, and I am afraid that we are unable to accept them for the same reasons. 
 The current hearsay rule requires the party that wishes to use such evidence to prove that it falls under one of the exceptions, which means proving that the foundation requirements are met. We recognise that the Criminal Justice Act 1988 already makes the various categories in clauses 100 and 102 potentially admissible, subject to the discretion provisions. However, the appearance of certainty is illusory, and, in practice, most applications must be judged. The Law Commission concluded that such a procedural safeguard would be lengthy and unnecessary in the case of most of the present categories. For example, in the Foxley case, the Court of Appeal recognised that some documents spoke for themselves as to their origins, and calling witnesses to demonstrate that all the requirements are met can simply waste court time. Such a practice is not necessarily automatically in the interests of justice. The commission also found that time was wasted on lengthy and unnecessary arguments about whether a statement should go in. 
 Despite those findings, such practices could, just possibly, be defended if they led to consistent and fair outcomes, which is the ultimate goal of us all. However, the commission found that they do not. Different judges reach different conclusions about whether statements should go in. The commission's consultation paper states that 
''the problem of discretion and arbitrary justice is not an imaginary one. Whether a prosecution is pursued may depend on the admissibility of evidence, and the question of admissibility may depend on the judge's discretion''.
 The commission recommended that there should be a series of automatic categories of admissibility under which first-hand hearsay evidence, whether total or documentary, would be admissible, provided that the witness failed to testify for valid and specified reasons. We endorse that view and have adopted it. We are persuaded that our reforms will address many of the concerns that have been expressed. 
 In the vast majority of cases, it should be relatively easy to predict whether evidence falls into one of the identified categories. The prosecution can make a more confident assessment of the prospects of conviction when deciding whether to prosecute, which must be in the interests of justice. Defence 
 lawyers can give better advice on the plea and the conduct of the defence, which must be in the interests of justice. It would cut out unnecessary argument and promote a more uniform approach in criminal trials. I hope that we can all agree about that. Reliable statements that do not fall within one of the recognised categories or in a preserved common law rule will remain potentially admissible under clause 98(1)(d). I hope that I have done enough to persuade hon. Members not to press those amendments. 
 Amendment No. 377 would require the court to specify its reasons for admitting out-of-court statements as evidence. Taken in conjunction with amendment No. 371—I am following the hon. Member for Somerton and Frome's imperative to consider the amendments together, if appropriate—it would have disastrous implications for the conduct of trials. Courts would not only have to consider the factors listed in subsection (2) every time that an out-of-court statement falls to be admitted, but they would have to give their reasons for admitting it. On practical grounds, we shall have to resist the amendment. 
 It is current practice for trial judges to give their reasons for admitting or excluding contested evidence following a hearing or a voir dire from which the jury is excluded. Many of those rulings deal with matters that have serious consequences for the conduct of trials—such as whether a confession should be admitted. It has not been deemed necessary to make provision in primary legislation to deal with such matters in the past, and the practice seems to work well. Hon. Members should note that we expect the trial judge to give his reasons for admitting evidence under clause 98(1)(d). He is also likely to give reasons for exercising his discretion to exclude evidence. However, it is not necessary to provide for that in the Bill. I should also point out that, since the enactment of the Human Rights Act 1998, magistrates are under a duty to give reasons for their decisions, and as a matter of practice will do so in rulings of this nature. 
 We believe that clause 98 will replace the current hearsay regime with a modern, comprehensive and intelligible legislative scheme. I understand that the hon. Member for Beaconsfield shares those objectives, even if he does not always agree with our means of getting there. Not only will it reduce the incidence of complex legal arguments and judicial error, but it will more closely reflect the principle on which the hearsay doctrine is based. We believe that the amendments, however well intentioned they are, would undermine what we believe to be a widely supported objective. The Committee will understand why we shall resist the amendment. Indeed, I hope that the hon. Member for Somerton and Frome has been persuaded to withdraw it.

David Heath: I am grateful to the hon. Gentleman for his explanation, and for his linking of the various amendments. However, I am not entirely convinced that he has linked them appropriately. He appeared to think that amendment No. 377 would qualify any decision taken under clause 98, rather than the specific circumstances of multiple hearsay; it is clear from the
 amendment to clause 105 that it would deal with only two of those circumstances.
 The Minister agrees that we should find common ground, but multiple hearsay is a difficult area. We should remember what the Law Commission had to say about it in 1997, in its report No. 245. It said that, in general, multiple hearsay was too unreliable to be admitted, because each step in the chain could lead to an increased risk of error. Allowing multiple hearsay to be used would give rise to the substantial risk that unreliable and manufactured evidence could be admitted. The Minister has decided, despite those risks, that he wishes to provide a mechanism for bringing such evidence into court. I am simply suggesting that that requires an additional safeguard because of that potential unreliability in the context of amendment No. 377. To suggest that that places an unacceptable burden of bureaucracy on every single application is to misread or misconstrue the intentions of the amendment.

Michael Wills: Multiple hearsay evidence does need safeguards—just not this one.

David Heath: I understand, and that is where we disagree because I am suggesting an amendment and the Minister is resisting it. I was trying to counter the argument that the provision would be applied to all applications for admissibility of evidence under clause 98. I do not think that it would; I am saying that it would be applied only in the specific circumstances that we are discussing.
 That brings us back to amendment No. 371. The Minister is obviously right that in terms of our judgment as to what should be before a court, we are not far apart. Where we are far apart is in our views on the tests that should be applied and the safeguards in the Bill. I think that I did the hon. and learned Member for Redcar an injustice in my intervention— 
Vera Baird indicated assent.

David Heath: Mea culpa. I hope that the hon. and learned Lady does not carry that hurt to her grave, because I do now understand the specific point that she was making and can only plead my judicial ignorance for not recognising that point.
 I repeat that I do not think that this is a high hurdle. I do think that it should be the starting gate for any consideration, and if there is need for subsequent exceptions, so be it. Nor do I necessarily see the requirement to apply this simple test as an unreasonable burden in proceedings. Indeed, as the Minister has been at pains to point out throughout his contributions on this clause, it is implicit in other provisions. We are simply seeking to make it explicit early in the provision, so that it qualifies the remainder of the clause. That seems sensible to me. I did not find the argument against it convincing; I am not sure how other members of the Committee feel about it, so perhaps it is appropriate to test their views. 
 Amendment negatived. 
 Clause 98 ordered to stand part of the Bill.

Clause 99 - Statements and matters stated

David Heath: I beg to move amendment No. 375, in
clause 99, page 58, line 17, at end add— 
 '(4) A statement of opinion is only admissible if the opinion would have been admissible as oral evidence in the proceedings.'.
 This very specific amendment is intended to clarify the balance between that which is adduced as hearsay evidence and that which would be admissible as oral evidence in proceedings. The key point here is in the matter of opinion, rather than fact. Clause 99(2) says that a statement is 
''any representation of fact or opinion'',
 but, as I understand it, opinion evidence is not generally admissible unless it is given by a professional or expert on the basis of his or her professional expertise. The wording of subsection (2) appears to allow a statement to include an opinion that is not so qualified. That seems an odd juxtaposition. A person who appeared in court would not be entitled to give that opinion, and it would not be admissible as evidence; but if that opinion was related to another person and then adduced as hearsay evidence in court, it would be given appropriate weight within the court's proceedings. I do not believe that that is the intention, but it appears to be what the Bill says at the moment. I should be most grateful if the Minister would explain what is intended. Is there a change in the admissibility of direct, primary evidence, or will the Bill introduce an unexpected expansion and a new anomaly?

Michael Wills: I am grateful to the hon. Gentleman for tabling this probing amendment. I assure the Committee that neither chapter 2 nor anything else in the Bill is intended to affect the common law rule in criminal trials that prevents witnesses from expressing their opinions on what might have happened in the case. Under the rule, the opinion of witnesses is inadmissible unless there is an exception, such as when the court needs expert help in deciding an issue. Most commentators take the view that that rule is a sensible precaution. I am not aware of any problems with its operation. The rule gives the courts sufficient flexibility to allow ordinary witnesses to express their opinions, when it is genuinely impossible to expect them to tell their story in any other way. I assure the hon. Gentleman that nothing in the Bill will alter that position. If an out-of-court statement contains opinion evidence, that part of the statement will not be admissible—

Dominic Grieve: So why is it there?

Michael Wills: It is important that there be clarity in the Bill. We have already heard some arguments this morning about clarity and are endeavouring to be clear about our position on the matter. I hope that that gives sufficient clarity to the hon. Gentleman.
 To repeat the point, if an out-of-court statement contains opinion evidence, that part of the statement will not be admissible unless it falls within one of the exceptions to the general rule against opinion 
 evidence. To be certain that there will be no unintended consequences, clause 98(3) states: 
''Nothing in this Chapter affects the exclusion of evidence of a statement on grounds other than the fact that it is a statement not made in oral evidence in the proceedings.''
 I hope that that gives hon. Members sufficient clarification, and that the hon. Member for Somerton and Frome will withdraw his amendment.

Dominic Grieve: The Minister and I—and the hon. Member for Somerton and Frome, I think—are on the same wavelength. However, in the light of the Minister's answer, I find the wording of clause 99 odd. The clause does not define what a statement is. As a generality, I am quite prepared to accept that in the court context, a statement is any representation of fact or opinion. One can have the statement of an expert and the statement of an individual. However, subsection (1) says:
''In this Chapter references to a statement or to a matter stated are to be read as follows.''
 Subsection (2) describes a statement as a 
''representation of fact or opinion'',
 which, in light of what the Minister said in his helpful comments, is exactly what a statement in the context in question cannot be. Why therefore is that included?

Michael Wills: Let me, if I may, Mr. Illsley, spell the matter out at greater length. As well as to produce clarity, one of the key reasons for the provisions is to deal with precisely those cases that lawyers know as cases of implied assertion. As I have been invited on to this ground, I shall spell out a little more what we intend with the clause. That is not strictly to the point of the amendment, although I hope that, with your indulgence, Mr. Illsley, we may—

Dominic Grieve: On a point of order, Mr. Illsley. May I take it therefore that I am not giving way to the Minister, but that he is going to speak further and that I can speak after him?

Eric Illsley: If the Minister is intervening on the hon. Member for Beaconsfield, his intervention should be short and he should seek another opportunity to expand on his point.

Michael Wills: I am happy to abide by your ruling, Mr. Illsley. If I am given sufficient opportunity I shall return to the matter once the hon. Member for Beaconsfield has made his point.

Dominic Grieve: I shall shortly sit down. I think that the Minister is coming to the nub of the issue. I understand what he says about implied assertion. Instances can arise in court in which laymen give expressions of opinion in areas in which they are not normally admitted. That raises a difficulty. Should such things be admitted as part of the hearsay rules? I shall be interested to hear what the Minister has to say.

Michael Wills: I assume that I may now speak at greater length, because this is a complex area that has caused difficulty. It is important, now that we have moved to this matter, which is not strictly to do with the amendment, to spell out why the clause has been included. It defines the type of statement that will be covered by the new scheme. According to subsection (3), the rule will apply only if it is the purpose of the
 person making the statement to cause someone to believe that the matter stated is true, or to act on the basis that it is true.
 The common law rule is much wider. It excludes statements or conduct from which a relevant fact can be inferred although the maker did not intend to communicate that fact. The rule has, as hon. Members will know, caused a lot of confusion and occasional injustice in borderline cases, known to the legal profession as implied assertions. An example might be when a child says the words, ''Hello, Daddy.'' The child is not asserting ''I am speaking to my father,'' but a listener would be able to infer that by implication. The statement contains an implied assertion that the child is speaking to his or her father. In the case of Kearley, a majority of the House of Lords held that the hearsay rule extends to such implied assertions. That means that if a statement could be said to contain an implied assertion, then it was being proffered to prove the truth of such an implied assertion and that express statement would be inadmissible hearsay. 
 Clause 99 is taken from the Law Commission's draft Bill on hearsay. It is intended to address the problems that have arisen from cases of implied assertion, such as the exclusion of much cogent and reliable evidence because it could be argued that all human utterances and acts contain some implied assertions. It seems illogical to exclude all such statements during a criminal trial. Additionally, it is often difficult to distinguish an implied assertion from direct evidence. The new definition in clause 99 reflects the Law Commission's recommendation that the hearsay rule should not prevent the admission of evidence if the maker did not intend by word or conduct to communicate the information. That is simply bringing the law into line with other jurisdictions. In Scotland, as in many common law jurisdictions, such statements have never been excluded under the rules of evidence. We are not aware that any problems have arisen as a result of—

Dominic Grieve: That is very helpful. It fully explains the purpose of clause 99(3). However, it does not explain the representation of fact or opinion. I hoped that the Minister would give an example of a case in which it might be thought proper for an expression of opinion to be admitted in that form. He has not done so, and that makes me wonder whether I was being too kind to him. I cannot think of any reason why the words ''or opinion'' should stay in.

Michael Wills: We are trying to produce greater clarity in the law. What I said in relation to the amendment applies to the clause itself; we want to show clearly our intention. It is important to put opinion in, but to be clear about the context in which it is being used. As I explained to the hon. Member for Somerton and Frome, nothing here or in the rest of the Bill is intended to affect the common law rule that, in criminal trials, prevents witnesses from expressing their opinion about what has happened, or might have happened, except when it falls within a recognised exception—such as expert help.

Dominic Grieve: The Minister is getting there at the moment.

Michael Wills: I am not sure whether that is an expression of approbation or whether the hon. Gentleman wishes to intervene. He is just agreeing? That is a delightful state to be in.

David Heath: I am still struggling to understand the circumstances in which opinion is to be included, unless we are talking about dead experts. Are we?

Dominic Grieve: No.

Michael Wills: I can respond to that by giving one example. If an expert gives an opinion in a written statement, that is hearsay as well as opinion. That is why we have to consider both things together. We are introducing the clause to deal with difficulties that have arisen in the past, but we also accept that certain categories—

Dominic Grieve: Is the Minister saying that the inclusion of the words ''or opinion'' is designed to cover those borderline examples in which a layman may properly give an expression of opinion to be accepted by the court without straying into the realm of the expert? I think that that is what the Minister means. That is fine, as long as we ensure that he does not stray into the realm of the expert. Perhaps we do that in clause 98(3).

Michael Wills: The answer is yes. The hon. Gentleman is right and has expressed it extremely elegantly. I understand what has given rise to the amendments, and I am glad that I have been able to bring clarity to the matter. We seem to be in agreement so I hope that, having discussed both the substantive clause and the amendment, the hon. Gentlemen will feel able to withdraw the amendment.

Dominic Grieve: Yes, I do now understand what this is about. When I first read it I was rather startled. However, I accept that there are many circumstances in which witnesses might put in statements expressions of fact that come to the point of opinion. As an example: ''I went out of my house. It was very cold and I thought that it was below freezing.'' That sort of opinion is expressed all the time, and usually causes no difficulty. The rather curious phraseology of the clause is intended to deal with that. If that is the case, then I am satisfied by the Minister's reply. However, he will understand why it reads oddly in the context of hearsay evidence. It appears, unless it is read in conjunction with clause 98(3), to give a permission to allow opinion evidence in by hearsay. I leave it to the Minister to decide before Report whether further qualification should be introduced so that it specifies that it is not evidence that only an expert could give, or whether he feels that it is sufficiently well drafted at present.

David Heath: I am grateful to the Minister. He has understood the amendment's intention, and has said explicitly that the rules of evidence will apply in the same way to hearsay evidence and to oral evidence. A sense of ambiguity remains at the back of my mind, and that may be unhelpful. The Minister may wish to look at the wording again.
 You were very generous, Mr. Illsley, to allow a brief discussion of clause 99(3) on implied assertion, which the Minister mentioned. That is helpful to our understanding of what is intended. I wonder whether 
 the Minister might intervene to make it plain that a change to the rules of evidence will not be introduced that applies to hearsay evidence but not to oral evidence. It would not be helpful to introduce a new anomaly.

Michael Wills: I am happy to confirm that. I hope that that reassures the hon. Gentleman.

David Heath: I am grateful to the Minister. He has clarified matters considerably, so I beg to ask leave to withdraw the amendment.
 Amendment, by leave, withdrawn. 
 Clause 99 ordered to stand part of the Bill.

Clause 100 - Cases where a witness is unavailable

David Heath: I beg to move amendment No. 523, in
clause 100, page 58, line 38, at end insert 
 'but only after such steps as may reasonably be taken to address that fear have been taken'.
 This is a crucial area of consideration that fits in with what is by common consent a major factor in the fairness of the judicial system—the intimidation of witnesses. We have heard from the Government that they intend to introduce specific legislation during this Session to deal with that. Many of us look forward to that legislation affording witnesses the greatest possible protection in order to prevent intimidation. Witnesses often do not make themselves known to the police in the first instance or they do not come forward to give evidence at trial because they are not convinced that the authorities can offer them the appropriate protection. Therefore, they have a real fear. 
 The amendment is not intended to deny the recourse that the Bill gives to allow for witnesses to give evidence when that is the only option. We are at pains to express, however, that that should not be seen as an easy way out. It should not be a matter of course that the police and the judicial authorities do not have to have proper regard for the reasons behind that fear. They should try to mitigate that fear where possible. 
 My hon. Friend the Member for Southwark, North and Bermondsey (Simon Hughes) and I have made it clear that we consider the intimidation of witnesses and perversion of the course of justice to be one of the most serious of offences, because it strikes at the heart of the judicial system. If that is allowed to be the climate in which our judicial system works, we cannot have fair trials and the whole system of policing and justice will be much more difficult to maintain. 
 We want an assurance that, in the first instance, effective measures will be taken to protect witnesses. That will undoubtedly be part of the substance of the legislation that we shall be considering later. However, the courts will always favour oral evidence, and the presumption is that the authorities will have taken appropriate measures to provide effective protection for witnesses. Anything suggesting that that was a 
 second priority would put the cart before the horse, because it would reverse those assumptions. 
 I do not think that the proposal would reduce the opportunity for evidence to be given as written statements if there was a genuine cause for concern. However, the police, when collecting statements, might be prevented from saying to witnesses, ''You will not have to go to court on this. We can do it as a written statement, because we know perfectly well that you run the risk of having a brick through the window, or worse, from the chap up the road. Don't worry about going to court to give evidence. All you have to do is to give us a written statement and we shall make sure that it is used in court proceedings. We guarantee that you will not be called to give evidence in court.'' 
 That is not the best procedure; it is only second-best. It will always be in the interests of justice that witnesses should be able to be questioned on their evidence, but that procedure certainly gives the defence rather less opportunity to challenge accusations or evidence.

Lady Hermon: I draw the hon. Gentleman's attention to the fact that parts of the Criminal Justice Act 1988 are more or less repeated in clause 100. Since 1988, statements have been admissible if the person is dead, unfit through mental incapacity or outside the United Kingdom. Interestingly, statements made in fear or made by a person who is being kept out of the way are entitled to be taken, provided that they were given to a police officer or some other person charged with the duty of investigating offences or charging offenders. The difference between that and clause 100—I hope that the Minister will deal with it—is that statements given through fear no longer have to be given to a police officer or someone investigating a crime but could be given to a print journalist, a biographer and goodness knows who else.

David Heath: The hon. Lady, as always, is extremely helpful in assisting the Committee to understand the provisions.
 I do not think that I need to say a great deal. I look forward to the Minister's reply. We should mitigate the responsibility of the judicial and policing authorities whenever possible to reduce the fear of intimidation and of pressure being put on witnesses or potential witnesses. The insertion of the words suggested in the amendment would make it explicit in the Bill that the first responsibility would be to allow the witness to give evidence free of fear; the second would be to provide an avenue for that evidence to be adduced under other circumstances.

Michael Wills: I am very conscious that I have about a minute before the end of the sitting, so I shall return to this important issue after lunch. I understand the concerns raised by the hon. Gentleman and the hon. Member for North Down; and I shall answer the hon. Lady at greater length this afternoon. However, I assure the Committee that we take those considerations extremely seriously, and we shall look for its support. Our starting point is that the Bill would support victims as witnesses to a far greater extent. Indeed, clause 100(2)(e) replaces and extends powers under the Criminal Justice Act 1988 to admit
 statements of frightened witnesses because we share the concerns that the hon. Gentleman and the hon. Lady articulated so eloquently.
 It being twenty-five minutes past Eleven o'clock, The Chairman adjourned the Committee without Question put, pursuant to the Standing Order. 
 Adjourned till this day at half-past Two o'clock.